(concurring).
I concur but believe that there is an additional ground, namely, that the District Court had no power to modify the judgment. The original judgment for $115,000 was entered on May 21, 1956, appealed to this court and affirmed, 2 Cir., May 3, 1957, 244 F.2d 668. That judgment has been satisfied.
More than a year later, June 20, 1957, plaintiff brought her present motion. There is no support for the claim that the omission of interest from the date of death, December 23, 1950, to the date of the original judgment was a mere clerical error. Any subsequent modification of the judgment, as entered, by motion (particularly by a judge other than the trial judge) would result in an unwarranted revision of the jury’s verdict based upon the speculation that the jury intended the $115,000 to be the award as of the date of the injury with interest to be added thereto. But this was not their verdict or their award. Furthermore, the motion to amend this judgment was untimely because it had not been made within one year (see Fed.Rules Civ.Proc. 60(b)). After affirmance on appeal the mandate of this court did not authorize *136entry of any other judgment except the original one for $115,000 and the District Court was without power to deviate from the amount ordered to be entered.
The decisions of this court and the Supreme Court in Briggs v. Pennsylvania Railroad Co., 2 Cir., 1948, 164 F.2d 21, 1 A.L.R.2d 475, affirmed 834 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403, are pertinent. There the District Court granted plaintiff’s motion for the inclusion of interest on a verdict up to the date of the ‘judgment entered upon the mandate of this Court. In reversing the court stated (164 F.2d at page 23):
“The only judgment which could then lawfully have been entered was, however, one which conformed to the mandate of this court. That directed judgment in the amount of the verdict but made no direction whatever as to interest. When our mandate specifically directs the entry of judgment for a designated amount, the District Court is without power to enter judgment for a different sum.”
The Supreme Court affirmed in even more sweeping language (334 U.S. at pages 306-307, 68 S.Ct. at page 1040):
“ * * * It is clear that the interest was in excess of the terms of the mandate and hence was wrongly included in the District Court’s judgment and rightly stricken out by the Circuit Court of Appeals. The latter court’s mandate made no provision for such interest and the trial court had no power to enter judgment for an amount different than directed. If any enlargement of that amount were possible, it could be done only by amendment of the mandate. But no move to do this was made during the term at which it went down. * * *
“The plaintiff has at no time moved to amend the mandate which is the basis of the judgment. That it made no provision for interest was apparent on its face. Plaintiff accepted its advantages and brings her case to this Court, not on the proposition that amendment of the mandate has been improperly refused, but on the ground that the mandate should be disregarded. * * * ”
The court refused to pass upon the substantive question of whether the plaintiff was entitled to interest under 28 U.S.C.A. § 811, now 28 U.S.C.A. § 1961.
Likewise here, regardless of whether the plaintiff was entitled to interest under state law, the District Court had no power to vary from the terms of our mandate. Had plaintiff wished to have the mandate altered, proper procedure required a motion to be made in this court requesting amendment thereof. Powers v. New York Central Railroad Co., 2 Cir., 251 F.2d 813. Even then proof of error or mistake would have been required. Another judge over a year after the trial could not change the jury’s award by increasing it, in effect, by $37,904.20 to $152,904.20.